Citation Nr: 0900686
Decision Date: 01/07/09 Archive Date: 01/14/09
DOCKET NO. 98-18 897 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
INTRODUCTION
The veteran had essentially continuous active military
service from December 1958 to October 1980. He died in March
1993. The appellant is his widow.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1998 rating decision by the
Department of Veterans Affairs (VA) Winston-Salem, North
Carolina Regional Office (RO). In an April 2003 decision the
Board denied the claim on the merits. The appellant
appealed.
In an October 2006 memorandum decision the United States
Court of Appeals for Veterans Claims (Court) set aside the
April 2003 Board decision, and remanded the matter for
proceedings consistent with their decision. In May 2007 and
May 2008, the Board remanded this case for further
development consistent with the Court's order.
FINDINGS OF FACT
1. VA has notified the appellant of the evidence needed to
substantiate her claim, obtained all relevant medical
evidence designated by the appellant and obtained medical
opinions in order to assist the appellant in substantiating
her claim for VA benefits.
2. The cause of the veteran's March 1993 death, according to
the death certificate, was carcinomatosis-rule out
pancreas-rule out lung, due to or as a consequence of
malnourishment, due to or as a consequence of dementia.
Pancreatic adenocarcinoma leading to congestive heart failure
was identified as the cause of death on the veteran's autopsy
report.
3. At the time of death, service connection was in effect
for peripheral neuropathy of the right lower extremity,
secondary to alcoholism, evaluated as 20 percent disabling;
peripheral neuropathy of the left lower extremity, secondary
to alcoholism, evaluated as 20 percent disabling; and for
hypertension, evaluated as 10 percent disabling.
4. No competent (medical) evidence has been presented that
attributes the disease processes implicated in the veteran's
death to military service; nor is it shown that his service-
connected disabilities contributed substantially or
materially to cause the veteran's death.
5. The veteran's in-service weight loss and gastrointestinal
problems did not substantially or materially contribute to
the cause of his death.
CONCLUSION OF LAW
The veteran's death was not caused by, or substantially or
materially contributed by, an injury or disease incurred in
or aggravated by active military service. 38 U.S.C.A.
§§ 1310, 5103, 5103A, 5107 (West 2002 & Supp. 2008);
38 C.F.R. §§ 3.102, 3.159, 3.312, 3.326 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act (VCAA) of 2000
Under the Veterans Claims Assistance Act of 2000 VA will
assist a claimant in obtaining evidence necessary to
substantiate a claim but is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. 38 U.S.C.A. §§ 5103A, 5107(a); 38 C.F.R.
§§ 3.102, 3.159(c)-(d). This law further requires VA to
notify the claimant and any representative, of any
information and any medical or lay evidence, not previously
provided to the Secretary, that is necessary to substantiate
the claim. As part of the notice, VA will specifically
inform the claimant and the claimant's representative, if
any, of which portion, if any, of the evidence is to be
provided by the claimant and which part, if any, VA will
attempt to obtain on behalf of the claimant. 38 U.S.C.A.
§ 5103; 38 C.F.R. § 3.159(b).
The appellant has received the notice required by law.
Specifically, VA provided the appellant and her
representative copies of the appealed June 1998 rating
decision, an October 1998 statement of the case, as well as
supplemental statements of the case in September 2002 and
October 2002 which provided notice of the evidence needed to
support a claim for entitlement to service connection for the
cause of the veteran's death and the reasons for the
determination made regarding the claim on the merits. In
addition, in correspondence dated in August 2000, April 2001
and September 2001 she was informed of the information and
evidence she needed to submit and of the evidence that had
been obtained by VA to assist in substantiating her claim.
The appellant has been notified of the disorders for which
the veteran was service connected and how to establish
service connection for the cause of death based on those
disorders, and/or any other disability related to service.
Further, VA has fulfilled its duty to assist the appellant in
obtaining evidence necessary to substantiate her claim. Most
notably copies of relevant VA clinical records showing
treatment of the veteran during his period of final
hospitalization in February and March 1993 have been obtained
and associated with his claims file. In addition, the record
in its entirety has been reviewed by VA physicians and
medical opinions have been proffered as to the etiological
relationship contended by the appellant. Thus, the Board
concludes that the duty to notify and assist as contemplated
by appellate provisions have been satisfied with respect to
the issue noted.
II. Entitlement to Service Connection for the Cause of the
Veteran's Death.
The veteran's death certificate states that he died in March
1993 due to carcinomatosis-rule out pancreas-rule out lung
due to or as a consequence of malnourishment due to or as a
consequence of dementia. A March 1993 autopsy concluded that
the cause of the veteran's death was a result of pancreatic
adenocarcinoma that led to congestive heart failure.
At the time of the veteran's death service connection was in
effect for peripheral neuropathy of the right lower
extremity, secondary to alcoholism, evaluated as 20 percent
disabling; peripheral neuropathy of the left lower extremity,
secondary to alcoholism, evaluated as 20 percent disabling;
and for hypertension, evaluated as 10 percent disabling.
It is the appellant's basic assertion that the veteran's
death was attributable to his service. In this regard she
maintains that the veteran was a very sick man during and
after his release from the military.
The veteran's service medical records contain no findings or
diagnoses of or treatment for symptoms attributable to or
indicative of pancreatic adenocarcinoma. Service medical
records do show that beginning in June 1966 the veteran was
evaluated by service physicians for a 30-pound weight loss of
unknown etiology over a period of three to four months
despite a good appetite. Diagnostic testing to include an
upper gastrointestinal and small bowel series was normal. In
August 1966 the veteran was noted to be feeling better and
his weight had in fact increased.
The service medical records also reveal several instances
where the veteran reported complaints of abdominal pain and
vomiting. The service medical records reveal no findings of
pancreatic adenocarcinoma.
An April 1977 record indicated that the veteran was seen with
complaints that included abdominal tenderness. A September
1977 record shows that symptoms of nausea and vomiting were
diagnosed as viral syndrome. An August 1978 record noted
that the veteran was treated for abdominal pain assessed as
possible diverticulitis, pancreatitis, or lymphadenitis.
Following clinical consultation, the diagnosis was
gastroenteritis.
In February 1980, the veteran, following concerns expressed
by his commanding officer about his physical condition, to
include alcohol abuse, underwent a complete physical. On
examination the veteran was noted to be an extremely thin
individual in no acute distress. In response to questioning
the veteran denied a history of alcohol abuse. Still,
following clinical evaluation the diagnostic assessments were
questionable alcohol abuse, questionable hypothyroid, and
questionable malnutrition.
The veteran was thereafter hospitalized in March 1980 with a
two-week history of fatigue and weakness. His weight on
admission was 135.5 pounds and he was described at admission
as a slender, asthenic somewhat ill-appearing individual.
While hospitalized the veteran was placed at bed rest and
given large doses of intravenous Thiamine and multivitamins.
He was noted to appear much better clinically after 48 hours
and his hospital course was reported as benign. Alcohol
withdrawal and alcohol abuse with secondary peripheral
neuropathy and a fatty liver were diagnosed.
A follow-up progress note in April 1980 records the veteran's
weight as 144.5 pounds with uniform and boots. It was stated
that the veteran had gained seven pounds. The veteran was
rehospitalized in May 1980 due to ethanol abuse and admitted
to a Naval hospital for an ethanol rehabilitation program.
The veteran underwent his initial VA examination in December
1980. His weight was recorded as 143 pounds. He was
characterized as well developed and fairly well nourished.
On physical examination the veteran's endocrine system as
well as his other systems were found to be essentially normal
exclusive of a finding on evaluation of the cardiovascular
system of hypertension. Probable alcoholism and peripheral
neuropathy secondary thereto were noted on neuropsychiatric
examination.
The veteran was hospitalized by VA beginning in June 1980
following his transfer from the Womack Army Hospital where he
had been admitted for intensive care and resuscitation
following an episode of syncope. He was suspected of alcohol
cerebellar encephalopathy and was noted to have a history of
delirium tremens, alcohol withdrawal seizures, and very poor
nutrition due to alcohol abuse. While hospitalized the
veteran had a consultation with a VA dietitian and also a
consultation with internal medicine for alcohol abuse and for
check-ups of his liver and pancreatic functions. An
ultrasound examination of the pancreatic area showed it to be
noncontributory. Continuous alcohol dependence was the
primary diagnosis at discharge.
Following a VA hospitalization in June and July 1986, the
veteran was discharged from the facility with diagnoses which
included possible cerebellar encephalopathy secondary to
alcohol dependence.
The veteran's terminal hospital summary reveals that he
presented in February 1993 for a routine neurology clinic
appointment and was admitted to the VA Medical Center in
Fayetteville, North Carolina, for weight loss. History on
admission recorded that the veteran's weight in September
1992 had been 135 pounds, but now after about five months, it
was 110 pounds, a 25-pound weight loss. The numerous
admitting diagnoses included marasmus kwashiorkor (protein-
energy malnutrition) and weight loss (25 pounds in the last
five months) of unknown etiology. The summary typed in
February 1993 noted the veteran's symptoms and discussed his
hospital course, his diet, and his test results. A
handwritten addendum indicated that the veteran was
extensively worked up with tests and that he was placed on
nasogastric tube feeding. It was noted that the veteran was
followed by cardiac and pulmonary services but his condition
continued to go downhill and he expired. An addendum to this
summary noted that an autopsy revealed carcinoma of the
pancreas with metastatic disease.
The Armed Forces Institute of Pathology in May 1993 reported
that their review of tissue slides provided to them by the VA
Medical Center resulted in agreement with the diagnosis of
adenocarcinoma consistent with pancreatic origin with
widespread metastatic disease (carcinomatosis).
In March 1993 the RO requested a VA physician review the
veteran's clinical records and offer an opinion as to whether
it is at least as likely as not that the symptoms/conditions
that the veteran was treated for in service contributed
substantially and materially to his death.
In a memorandum dated in March 2002, a VA physician reported
that he had reviewed the veteran's claims file and noted that
it showed that the veteran had a rather prolonged history of
severe alcohol abuse with peripheral neuropathy secondary
thereto as well as hypertension. He observed that there was
no known connection between carcinoma of the pancreas and
chronic ethanol abuse or hypertension. He stated that for
this reason he believed it was not likely that the symptoms
the veteran was treated for in life, mainly the alcoholism
and the peripheral neuropathy secondary to alcoholism and
hypertension, contributed in any way to his death.
Pursuant to an order of the United States Court of Appeals
for Veterans Claims, the Board in May 2007 and May 2008
remanded this case for further development. This development
included a review by a board certified gastroenterologist.
Following a review of all of the evidence of record, to
specifically include service medical records, all medical
records which pertained to the veteran's nutritional status,
and the death certificate's reference to malnutrition, the
physician was to prepare a report specifically addressing the
veteran's in service treatment for gastrointestinal problems
and weight loss, as well as his weight loss in the month
before his death. The examiner was to then address whether
it is at least as likely as not that the symptoms/conditions
the veteran was treated for in service contributed
substantially and materially to death; whether it is at least
as likely as not that they combined to cause death; or
whether it is at least as likely as not that they aided and
lent assistance to the production of death.
In July 2008, a VA physician reviewed the evidence of record,
to include that highlighted above, and opined that there was
no evidence to support any premise that any illnesses which
occurred between 1966 and 1980 or later with the veteran's
chronic alcohol abuse contributed to cancer of the pancreas.
The examiner observed that while the cause of pancreatic
cancer was unknown it would have to be assumed that the
cancer, at most, had its onset two or three years prior to
diagnosis. The examiner also opined that there was no
evidence that chronic alcohol abuse causes pancreatic cancer.
The examiner opined that the weight loss that the veteran
experienced in the last months of his life was related to his
metastatic cancer, and was considered cachexia of malignancy.
The illnesses which the veteran had in-service were judged to
be intermittent and self limiting. The examiner opined that
the in-service illnesses were related to the veteran's
history of alcohol abuse, but there was no evidence of in-
service pancreatic disease. Finally, the weight loss
associated with the veteran's final illness was opined to be
related to metastatic pancreatic cancer, and not linked to
any in-service episode of weight loss.
III. Analysis
In order to prevail on the issue of entitlement to service
connection for the cause of the veteran's death, the evidence
must show that a disability incurred in or aggravated by
service caused or contributed substantially or materially to
cause the veteran's death. 38 U.S.C.A. § 1310; 38 C.F.R.
§ 3.312. The service-connected disability will be considered
as the principal (primary) cause of death when such
disability, singly or jointly with some other condition, was
the immediate or underlying cause of death or was
etiologically related thereto. 38 C.F.R. § 3.312(b).
Contributory cause of death is inherently one not related to
the principal cause. It must be shown that it contributed
substantially or materially, that it combined to cause death,
that it aided or assisted in the production of death. It is
not sufficient to show that it causally shared in producing
death, but rather it must be shown that there was a causal
connection. 38 C.F.R. § 3.312(c).
Service connection will be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty, not the result of the veteran's own willful
misconduct. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Where a
veteran served continuously for ninety (90) days or more
during a period of war or during peacetime service after
December 31, 1946, and cancer becomes manifested to a degree
of 10 percent within one year from the date of termination of
such service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of such
disease during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary.
38 U.S.C.A. §§ 1101, 1112, 1131 (West 2002); 38 C.F.R.
§§ 3.307, 3.309. Service connection may be granted for any
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
There are primary causes of death which by there very nature
are so overwhelming that eventual death can be anticipated
irrespective of coexisting conditions, but, even in such
cases, there is for consideration whether there may be
reasonable basis for holding a service-connected condition
was of such severity as to have a material influence in
accelerating death. In this situation, however, it would not
generally reasonably hold that a service-connected condition
accelerated death unless such condition affected a vital
organ and was of itself of a progressive or debilitating
nature. 38 C.F.R. § 3.312(c)(3)(4); Lathan v. Brown, 7 Vet.
App. 359 (1999).
Although the appellant argues that the disabilities
implicated in the veteran's death, shown to be adenocarcinoma
of pancreatic origin with widespread metastatic disease, was
caused by service, the Board notes that there is no evidence
that pancreatic adenocarcinoma, a chronic disease within the
provisions of 38 C.F.R. §§ 3.307 and 3.309(a) was present in
service or was manifested within one year of service. The
post service clinical records disclose that pancreatic
adenocarcinoma was diagnosed immediately subsequent to the
veteran's death by an autopsy in March 1993, many years after
his military service. A medical opinion obtained from a VA
physician in March 2002 following a review of the veteran's
claims file noted that the veteran's death was a result of
carcinoma of the pancreas causing congestive heart failure.
He furthermore opined that it was not likely that the
veteran's service-connected disabilities, specifically
peripheral neuropathy secondary to alcoholism and
hypertension, contributed in any way to his death.
A July 2008 VA opinion concluded that there was no evidence
that chronic alcohol abuse causes pancreatic cancer; that
there was no evidence to support any premise that an
illnesses that occurred between 1966 and 1980 or later with
the veteran's chronic alcohol abuse contributed to his
pancreatic cancer; that the veteran's in-service illnesses
were intermittent and self limiting; and that the weight loss
associated with veteran's final illness was related to
metastatic pancreatic cancer and unrelated to any in-service
episode of weight loss.
While the appellant has asserted that the pathology
responsible for the veteran's death is related to service,
she has not shown or claimed that she is qualified to offer
medical statements or a medical opinion on this matter.
Therefore, her opinion while offered in good faith, cannot be
considered competent medical evidence and, as such, it is
insufficient to establish entitlement to service connection
for the cause of the veteran's death. Espiritu v. Derwinski,
2 Vet. App. 492, 494 (1992).
As there is no competent medical evidence tending to suggest
a causal connection to service or onset in service of any
other disease processes identified as implicated in the
veteran's death or a link between his death and service-
connected disabilities, service connection for the veteran's
death is not warranted.
In reaching this decision the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs